State v. Nelson
| Citation | 718 N.W.2d 168,2006 WI App 124 |
| Decision Date | 25 May 2006 |
| Docket Number | No. 2005AP2300-CR.,2005AP2300-CR. |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Mark E. NELSON, Defendant-Appellant.<SMALL><SUP>†</SUP></SMALL> |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Robert R. Henak and Amelia L. Bizzaro, Henak Law Office, S.C., Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of David J. Becker, asst. attorney general, and Peggy A. Lautenschlager, attorney general.
Before VERGERONT, DEININGER, and HIGGINBOTHAM, JJ.
Mark E. Nelson appeals from a judgment convicting him of two felony counts of capturing representations depicting nudity in violation of WIS. STAT. § 942.09(2)(a).1 One of the elements of this crime is that the person videotaped "is nude in a circumstance in which he or she has a reasonable expectation of privacy." Section 942.09(2)(a). The charges arise out of Nelson's videotaping his next door neighbors while they were using their bathroom.
¶ 2 The four issues on this appeal relate to the construction and application of the phrase "reasonable expectation of privacy" in WIS. STAT. § 942.09(2)(a). The first issue is the proper construction of the phrase and, more specifically, whether the language should be construed, as Nelson contends, according to the case law that applies this phrase in the Fourth Amendment context. We conclude that it is not reasonable to construe the phrase according to Fourth Amendment case law. Instead, we conclude that the words "expectation of privacy" have their common and ordinary meaning and "reasonable" has the well-established meaning of the objective reasonable person standard.
¶ 3 The second issue is whether WIS. STAT. § 942.09 is unconstitutionally vague if the phrase "reasonable expectation of privacy" is not construed according to Fourth Amendment case law. We conclude it is not. The third and related issue is whether we should exercise our discretionary power of reversal under WIS. STAT. § 752.35 because the jury instructions did not contain a definition of "reasonable expectation of privacy." We conclude there is no reason to reverse on this ground. The fourth issue is whether the evidence is sufficient to support Nelson's conviction. We conclude that it is.
¶ 4 Because we resolve all four issues against Nelson, we affirm the judgment of conviction.
¶ 5 During the summer of 2004, several college students rented and lived in the second-floor apartment of the house next door to Nelson's house; two women lived in the apartment all summer, and one woman, who had arranged to live in the apartment in the fall, visited the apartment during the summer. One of the women who lived in the apartment all summer and the one who planned to live there in the fall were depicted on videotapes recovered from Nelson. The videotapes were shown to the jury and admitted into evidence. In one videotaped scene, the woman who was visiting sits on the toilet and takes out and inserts a tampon, and her pubic area is visible. Five other separate videotaped scenes depict one of the women who lived there all summer: in four scenes she is using the toilet, with her public area visible; in one scene she is applying lotion and her breast is briefly visible.
¶ 6 The testimony at trial established that the bathroom window on the women's second-floor apartment faced Nelson's house and the distance between was ten feet and three inches. The layout of the bathroom is that the door is located on the wall directly opposite the wall with the window. The toilet is against the left-hand wall as one walks into the bathroom, and it is immediately to the left. Also on the left-hand wall is a sink and mirror, closer to the window. On the right-hand wall as one enters is a closet, across from the toilet; the closet is about four or five feet from the window.
¶ 7 The two women who lived in the apartment all summer testified as follows. The bathroom window is small and has fogged glass; there are no blinds or curtains. From the bathroom window they could see a window in Nelson's house, but that house appeared vacant. Either a for-sale or a for-rent sign was in front of the house; they never saw any lights on at the house, and they never noticed anyone around the house or going in or out of the house. One of the women testified:
I went in and out of the house every day to class at all time [sic]. I've never seen anyone coming in the front door or out the front door. I never saw any garbage taken out in the morning.... Never saw any lights on in the house. There was never any noise over there. No one in the back yard. There was nothing.
¶ 8 The women who lived there all summer did not believe anyone could see into their bathroom, even when the window was open, except possibly from Nelson's house. However, because Nelson's house appeared vacant, they believed that no one could see into their bathroom. During the summer, branches and leaves from a tree blocked the view of this window from the ground, and this tree, combined with the proximity of Nelson's house to their own, made it impossible to see into their bathroom window from the ground during the summer. If the leaves were not on the tree, someone on the ground looking into their bathroom would be able to see only a wall with a mirror on it. One of the women estimated that she was four or five feet away from the window at the time she was videotaped.
¶ 9 The woman who was videotaped while visiting also testified at trial. She did not see anyone at Nelson's house during the day or at night while she was visiting; therefore she did not believe anyone was there. The women who lived there all summer told her that an older woman lived on the other side of their apartment, but did not mention that anyone lived on Nelson's side. If she had seen anyone at Nelson's house or seen any lights on at his house, she would have shut the bathroom window.
¶ 10 Both women who were videotaped testified that they did not know they were being videotaped. They did not learn that they had been videotaped until the mother of one woman came to visit later in the summer and noticed what looked like a video camera in a window in Nelson's house. Initially, she was not sure what the object was, but when she went back to look at it again two or three minutes later, the object had disappeared. She and her daughter believed someone was watching them and called the police on August 24.
¶ 11 Two officers responded to the call. One testified that Nelson's house appeared to be vacant when he looked into it from outside—he could see a ladder and some remodeling supplies, but "no couches or anything else like that." However, Nelson did come to the door. He showed them his driver's license, which was from Florida, and told the officers that they could look around and that he did not own a video camera. The officers learned he was the landlord of the house, the renters had moved out June 1, and his permanent residence was Florida. He had been traveling back and forth between Wisconsin and Florida to fix up the house for sale or for future renters, staying at the house when he worked on it.
¶ 12 One of the officers testified that when he looked around Nelson's house, he saw that the room with the window across from the women's bathroom was empty except for a vacuum cleaner. Another room had a mattress on the floor, a television with a VCR and DVD player, and a closet with videotapes on the top shelf and also in a basket underneath dirty clothes. The officer went up into the attic, where he discovered a large piece of cardboard that had been "set . . . [r]ight up by the windows," and through these windows he could see into the front rooms of the women's apartment. He also noticed a tripod and a VCR in a black bag in the attic; when he commented on the tripod to Nelson Nelson said he needed a search warrant. A search warrant was obtained and the subsequent search produced the videotapes of the two women in their bathroom.
¶ 13 Nelson did not testify at trial. However, a third officer, who was called to assist the first two with the search warrant, testified that when he arrived at Nelson's house, Nelson admitted that he had filmed his neighbors, and said there would be "some nude people" on the tapes that the officers found in the search.
¶ 14 At trial, the jury was instructed in accordance with WIS JI-Criminal 1396, as follows:
Before you may find the defendant guilty of this offense—this is as to both counts and you must consider each offense individually—the State must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
One, the defendant captured a representation that depicted nudity.
Two, the defendant captured the representation without the knowledge and consent of the person who is depicted nude.
Three, the person who is depicted nude was nude in a circumstance in which he or she had a reasonable expectation of privacy.
Four, the defendant knew or had reason to know that the person who is depicted nude did not know of and did not consent to the capture of the representation.
Captures a representation means takes a photograph, makes a motion picture, video tape or other visual image.
Nudity means the showing of the human male or female genitals, pubic area or buttocks, with less than a full opaque covering or the showing of the female breast. . . .
Reasonable expectation of privacy means that the person who is depicted nude had an actual expectation of privacy at the time the depiction of nudity was captured. And, that the expectation of privacy was reasonable.
¶ 15 The jury found Nelson guilty on both counts. On the first count, the court sentenced Nelson to a bifurcated sentence, consisting of one year of confinement followed by a two-year term of extended...
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